Recent reports of Red-tagging, the labeling of government critics as terrorists, communists, or subversives to silence them, throw in bold relief the need for an understanding and appreciation of the nature of the rights in the Constitution, the better to promote public respect for them (“Gov’t using social media to harass activists—report,” (News, 10/15/24).
The Constitution contains a congeries of rights. Not all rights—for example, the right to quality education—are made by the Constitution. Many are natural rights, which are older than it, with which every person is endowed at birth. They can no more be denied any person than his right to breathe the air around him.
These rights are embodied in the First 10 Amendments to the United States Constitution. But the existence of these rights was foreshadowed in the American Declaration of Independence of 1776, which proclaimed: “All men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness, [and] that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
Even without a bill of rights, in the United Kingdom, an act of parliament was held void in the Bonham case for being against “common right and reason, repugnant, or impossible to be performed.”
“‘Common right and reason’ is something fundamental, something permanent, it is higher law,” as Edward S. Corwin said in his brilliant essay, “The ‘Higher Law’ Background of American Constitutional Law.”
These rights—they constitute higher law. Indeed, it has been observed that even when the powers of kings were at their most absolute and unconditioned peak, it had been conceived that there were limitations valid against any human authority. When the ruler or rulers, be they who might, exercised powers that went beyond them, their acts were not law at all law and nothing could make them so.
These rights found their way into our Constitution through successive colonial acts of the US government, beginning with President William McKinley’s instructions to the second Philippine Commission and ending with the Tydings-McDuffie law.
For us, “due process” has been the embodiment of all these rights. As Chief Justice Roberto Concepcion said, “Acts of Congress, as well as those of the Executive, can deny due process only under pain of nullity, and judicial proceedings suffering from the same flaw are subject to the same sanction, any statutory provision to the contrary notwithstanding” (Cuaycong v. Sengbengco, 110 Phil.113, 118 [1960]).
These rights are safeguarded by the Constitution from impairment, usurpation, or removal by any form of governmental action. No petition for initiative to amend the Constitution may therefore be filed to deny the equal rights of individuals or groups of individuals. By establishing them as legal principles they have become part of our positive law for the violation of which remedies are available in the courts.
As Justice Robert Jackson well said in the Barnette case, “The very purpose of the Bill of Rights [is] to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote; they depend on the outcome of no election (West Va State Brd of Educ. v. Barnette, 319 US 624 [1943]).
The Supreme Court has condemned Red-tagging, vilification, labeling, and guilt by association as threats to life, liberty, and security (Deduro v. Vinoya, G.R. No. 254753 July 4, 2023). It would be ironic, even perverse, for the government or any of its agencies to resort to the use of social media to harass, intimidate, or threaten its critics. Governments derive their powers from the people whose rights it is their duty to protect. That is the philosophy of our Constitution.
Whence have these rights—embodying “higher law”—come? Affirming their origin, John F. Kennedy, as president of one of the world’s great powers, said in 1961 in his inaugural speech, “[T]hese rights come not from the generosity of the state but from the hand of God.”
And so, to sum up, these rights come from God, put by men in their constitutions to protect them from impairment, usurpation, or removal by any form of governmental action and to establish them as legal principles to be applied by the courts. Only ignorance and lack of understanding and appreciation of their nature can account for their violations and disregard by those in whose care and safekeeping they are vouchsafed.
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Vicente V. Mendoza is a former member of the Supreme Court (1994-2003) and professor of constitutional law at the University of the Philippines College of Law, and was educated in UP and the Yale Law School.